Delhi District Court
Smt. Babita Devi vs Konouri Venkateshwara Rao on 26 August, 2011
1
IN THE COURT OF MS.POONAM CHAUDHARY
JUDGE:MOTOR ACCIDENT CLAIMS TRIBUNAL 1 NEW DELHI
SUIT NO.: 147/11
DATE OF INSTITUTION: 24.01.08
Unique ID No. 02403C0065262008
1. Smt. Babita Devi
W/o Late Sh. Raj Singh
2. Ms. Monica
D/o Late Sh. Raj Singh
3. Sh. Ravi Raj
S/o Late Sh. Raj Singh
4. Sh. Bhawani Singh
S/o Late Sh. Net Ram
5. Smt. Kasturi Devi
W/o Sh. Bhawani Singh
All R/o RZW12 A, Nanda Block, Gali no. 7,
New Shiv Mandir, Palam New Delhi110045
(Petitioner no. 2 and 3 are minors being
represented through petitioner no. 1 being
their mother and natural guardian) ...............Petitioners
VERSUS
1. Konouri Venkateshwara Rao
S/o Sh. Pothu Raju,
C/o S Venkateshwarulu,
R/o D. No. 2236/C, Gollagudem Khamma,
Disst. Khammam, Andhra Pradesh507001.
2. National Insurance Company Ltd.
2 Floor, 271226, Garlapati Complex,
nd
2
Governorpet, Alibagh Street,
PB no. 385, Vijaywada, Krishna,
Andhra Pradesh520002 ......... Respondents
Final Arguments heard on : 12.08.2011 Award reserved for : 26.08.2011 Date of Award : 26.08.2011 AWARD
1. Vide this judgment cum award shall decide the petition U/s 140 & 166 of Motor Vehicle Act, 1988 as amended up to date (hereinafter referred to as the 'Act') filed by the petitioners for grant of compensation for the death in a road accident.
2. Briefly stated the facts giving rise to the petition are that on 22.08.07 at about 11.15 PM the deceased alongwith Parvinder Singh/cleaner was crossing the road after parking their lorry on the left side of the road as per rules. The deceased and cleaner were standing on the road divider to cross the road in front of Court building, P. S. Huzurabad, District Karimnagar, when a lorry bearing no. AP20X1599 come from Karimnagar side and going towards Warangal Road, driven in a rash and negligent manner at very high speed in contravention of traffic rules and dashed against the road divider thereafter hitting a electric pole and then hit the deceased and cleaner Parvinder Singh. It is further alleged that due to forceful impact of accident both of them 3 sustained serious injuries and were taken to hospital in Huzurabad where Raj Singh was declared brought dead. It is further stated that the accident was caused due to the rash and negligent driving of the driver of offending vehicle bearing no. AP20X1599.
3. It is further stated that the deceased was 38 years of age at the time of accident. He was working as a commercial driver in M/s R. S. Travels, 849, Shabad, Mohammadpur, Near IGI Airport, New Delhi and was earning Rs. 8200/ per month. It is also alleged that deceased left behind his widow/petitioner no. 1, children/ petitioner no. 2 and 3 and parents/petitioner no. 4 and 5 who were totally dependent upon him.
4. It is further stated that driver of the offending vehicle(since deceased) was driving the vehicle under the instructions, permission and direction of respondent no. 1, the owner of the vehicle and the vehicle was insured with respondent no. 2, hence respondents no. 1 and 2 are jointly and severally liable to pay compensation. It is prayed that Rs. 20,00,000/(Rs. 20 Lacs) be awarded to the petitioners with interest. It is also prayed that interim compensation be also granted.
5. Respondent no. 1 was duly served by publication but none appeared on behalf of respondent no. 1 despite service as such respondent no. 1 was proceeded exparte.
6. Respondents no. 2 filed written statement contesting the petition on 4 various grounds inter alia that it was not maintainable. It was also stated that liability of respondent no. 2 was as per the terms and conditions of policy. It was stated that vehicle bearing no. AR 20X 1599 was insured with respondent no. 2 w.e.f. 01.12.2006 to 31.11.07 in the name of respondent no. 1 vide policy number 550400/31/06/6300005127.
7. The averments regarding the age and income of deceased were denied. It was further alleged that it was on the petitioners to prove that accident was caused due to rash and negligence driving of the driver of offending vehicle. It was denied that respondent no. 2 was liable to pay compensation.
8. In support of their claim the petitioners examined PW1 wife of deceased Smt. Babli Devi, she tendered her evidence in examination inchief by affidavit Ex. PW1/A reiterating therein the contents of petition. She proved the driving licence of deceased Ex. PW1/1, his salary certificate Ex. PW1/2, matriculation certificate of deceased Ex. PW1/3, attested copies of the FIR, inquest report, postmortem report, final report, Site plan, date of birth proof of petitioner no. 2 issued by her school, voter Icard of PW1 showing her residence at Delhi.
9. Petitioners also examined PW2, Sh. Parvinder Singh the eye witness to the accident who stated that on 22.08.2007 at about 11.15 PM he 5 and deceased were crossing the road after parking their lorry on the left side of road at Court building, PS Hujurabad, Disst. Karimnagar, Andhra Pradesh when a Tata 2515 bearing no. AP 20X 1599 came from Karimnagar driven by its driver in a rash and negligent manner and dashed against the road divider and electric pole and thereafter hit him and deceased as a result of which they both sustained severe injuries. It is also stated that they were taken to hospital where Raj Singh was declared brought dead. He also stated that the accident was caused due to rash and negligent driving of vehicle no. AP20X1599 by its driver.
10.Petitioner also examined Sh. Subhash as PW3 who proved the salary certificate of deceased. The petitioners thereafter closed their evidence.
11.On the other hand respondents did not examined any witness inspite of opportunity being granted.
12.I have heard the Ld. counsel for the parties and perused the record.
13. As the petition has been filed U/s 166 M.V Act it was incumbent upon the petitioners to prove that the accident was caused by the rash and negligent driving of the driver of the offending vehicle at the time of accident. In this regard the petitioners examined the eye witness PW2 and proved the attested copies of the FIR lodged against the driver of 6 offending vehicle, inquest report, postmortem report of the deceased according to which death was due to traumatic shock as a result of multiple injuries sustained during road traffic accident, final report, Site Plans as Ex. PW1/5 to PW1/8.
14.To determine the negligence it has been held in 2009 ACJ 287 National Insurance Company Ltd. V/s Pushpa Rana & Another as follows:
"Negligenceevidenceadmissibility of documentcertified copy of criminal court, such as, FIR, recovery memo and mechanical inspection report of vehicle are documents of sufficient proof to reach the conclusion that driver was negligentproceedings under Motor Vehicles Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. "
15.The testimony of eyewitness and criminal record shows the involvement of offending vehicle in accident, criminal record further shows that on completion of investigation final report was filed stating that the driver of the vehicle no. AP20X1559 caused the accident due to the rash and negligent driving. It was stated that the accused died due to the negligent driving of offending vehicle. It was also stated that the case be closed as action had abated. These documents and the postmortem report are sufficient proof of the negligence of the 7 driver of the offending vehicle. Accordingly, issue no. 1 is decided in favour of the petitioner and against the respondents. ISSUE NO. 2
16.As issue no. 1 has been decided in favour of the petitioner they are entitled to compensation. As regards to the quantum of compensation PW had stated that the deceased was 38 years of age at the time of accident and he left behind the petitioners who are his legal heirs. He was working as a driver with M/s R. S. Travels 849, Shabad, Mohammadpur, Near IGI Airport, New Delhi and was drawing a salary of Rs. 8,200/ per month. Petitioners also examined the Manager Operation of the Proprietor of firm where the deceased was employed as PW3 who proved his salary certificate. She also stated that income of the deceased would have increased in the future.
17.As regards the future prospects it has been held in Sarla Verma Vs DTC 2009(6) SCC 121 wherever the deceased had a permanent job, actual salary (less tax) should be increased by 50% towards future prospects, to arrive at the monthly income. In the present case the deceased did not have a permanent job. Moreover, no concrete evidence was led regarding the rise in income due to future prospects thus, no amount can be added towards future prospects. However, the testimony of the petitioner/PW1 and PW3 went unchallenged as 8 regarding the salary of deceased. I accordingly hold that the deceased was earning Rs. 8,200/ per month at the time of accident.
18.Respondent no. 2 also did not challenge the testimony of PW1 regarding the fact that the petitioners were the legal heirs of deceased. Thus, I hold that the petitioners no. 1 to 5 are the legal heirs of deceased. In view of the above judgment as deceased was survived by five dependents ¼ is to be deducted towards the personal expenses of deceased, after deduction of ¼ out of Rs. 8,200/ the contribution of the deceased to his family would have been Rs. 6,150/.
19.PW1 stated that the deceased was 38 years of age at the time of accident. She had proved the matriculation certificate of the deceased according to which his date of birth is 10.07.1969, thus the deceased was around 38 years at the time of his death. The multiplier applicable in view of the above said judgment is 15. Thus, the loss of dependency comes to Rs. 6,150/ x 12 x 15 = Rs. 11,07,000/. I also award Rs. 20,000/ each towards loss of consortium, loss of estate, loss of funeral expenses and loss of love and affection. Thus, the total compensation is determined as under:
Loss of dependency : Rs. 11,07,000/
Loss of Funeral Expenses : Rs. 20,000/
Loss of consortium : Rs. 20,000/
Loss of Estate : Rs. 20,000/
9
Loss of love and affection : Rs. 20,000/
Total : Rs. 11,87,000/
RELIEF:
20.In total I thus award a sum of Rs.11,87,000/ (Rs. Eleven Lacs Eighty Seven Thousand Only) as compensation with interest at the rate of 7.5% per annum including interim award from the date of filing the petition till its realisation, in favour of the petitioners against the respondents. In the the awarded amount petitioner no. 1 shall have a share of 60% and remaining petitioners shall have a share of 10% each.
21. For safeguarding the compensation amount from being frittered away by the beneficiaries, it has been held in G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 as follows:
"in a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this court in Union Carbide Corporation v. Union of India, 1991 (4) SCC 584, in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajaarambhai harijan V/s 10 United India Insurance Co. Ltd. 1983 ACJ 57 (Gujarat), this court offered the following guidelines:
"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term fixed deposits at least till the date of the minor attaining majority.
The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;
22. In view of the above judgment a sum of Rs. 1,00,000/ (Rs. One Lakh) be released to petitioner no. 1 and her remaining share be kept in FDR for the period of 10 years. The entire amount of the petitioner no. 2 and 3 shall be kept in FDR till they attain majority. 50% of share of petitioners no. 4 and 5 be released to them and remaining 50% be kept in FDR for the period of five years. No advance or loan shall be allowed against the FDR except with the permission of the court.
23. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. Copy of the order be given to respondent No.2 for compliance. The petitioners shall file two sets of photographs along with their specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala 11 House Court Branch, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioners will also file the proof of residence and furnish the details of the bank account with the Nazir within a week.
APPORTIONMENT OF LIABILITY:
24. Respondent no. 2 did not lead evidence inspite of opportunity being granted, thus, respondent no. 2, being the insurer is jointly and severally liable with other respondents to pay compensation. Accordingly, respondent no. 2 is directed to deposit the award amount within a period of 30 days in UCO Bank, Patiala House Court Branch, New Delhi. In case of any delay, it shall be liable to pay interest at a rate of 12% per annum for the period of delay. The petitioners to approach the UCO Bank, Patiala House Court Branch for opening an account. The claimants can operate the saving account from the nearest branch of UCO Bank. On the request of claimants, the bank shall provide the said facility.
File is consigned to Record Room.
Announced in the open court.
On 26.08.2011 (POONAM CHAUDHARY)
JUDGE MACT1 : NEW DELHI